Appeal of M.K. and S.K., on behalf of their son B.K., from action of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 15,373

(March 8, 2006)

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., attorneys for petitioners, Louis U. Gasparini, Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the North Colonie Central School District ("respondent") to suspend their son, B.K., from school. The appeal must be sustained in part.

During the 2003-2004 school year, B.K. was enrolled in the eighth grade at Shaker Junior High School in respondent's district. By notice dated March 10, 2004, the junior high school principal ("principal") advised petitioners that B.K. was being suspended for five days commencing March 10, 2004 for giving prescription medication to another student. By letter dated March 10, 2004, respondent's superintendent advised petitioners that respondent would conduct a disciplinary hearing on March 16, 2004 to determine whether a long-term suspension was warranted. The letter charged B.K. with distributing a controlled substance.

After the initial hearing date was postponed due to inclement weather, respondent met in executive session on March 23, 2004 to consider the disciplinary charge against B.K. Before the hearing commenced, petitioners' counsel objected to respondent's policy 5313.3-R2 which provides, among other things, that respondent conduct student disciplinary hearings. Outside respondent's presence, petitioners' counsel argued to the hearing officer and district's counsel that the policy violates Education Law �3214 because it improperly vests respondent with authority to conduct the hearing and to impose a long-term suspension.

After discussing the issue with respondent in executive session, the hearing officer reported that respondent was comfortable proceeding with the hearing. Petitioners' counsel repeated his objection on the record, which respondent denied, and the hearing proceeded.

At the hearing, B.K. pled guilty to providing a fellow student with his prescription medication and his counsel argued that a further suspension was unwarranted. At the conclusion of testimony, respondent sustained the charge against B.K. and, after deliberating, suspended B.K. for the remainder of the school year. This appeal ensued. Petitioners' request for interim relief was denied on April 19, 2004.

Petitioners contend that respondent's disciplinary policies improperly vest respondent with authority to suspend a student in excess of five days in violation of Education Law �3214. Petitioners assert that B.K. was deprived of due process, that respondent's determination was arbitrary and capricious, and that the penalty imposed was excessive. Finally, petitioners allege that respondent failed to provide B.K. with adequate alternative education. Petitioners request that I order respondent to expunge B.K.'s records and repeal certain disciplinary policies.

Respondent contends that the conduct of the hearing and its disciplinary policies are consistent with the Education Law and that the penalty imposed was appropriate.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Thus, the appeal must be dismissed as moot to the extent petitioners seek to vacate the suspension because it has already been served. The appeal is not moot, however, insofar as petitioners seek expungement of the suspension from B.K.'s record or the repeal of certain disciplinary policies.

Education Law �3214(3)(c)(2) provides, in pertinent part:

(2) Where a pupil has been suspended in accordance with this section by a board of education, the board may in its discretion hear and determine the proceeding or appoint a hearing officer . . ..

Pursuant to this language, a board of education (or its appointed hearing officer) is authorized to hear and determine a disciplinary hearing only when the board itself has suspended the pupil. This hearing authority dates back to 1969 when amendments to �3214 incorporated into statute the due process rights that courts had recognized and applied in case law (see L 1969, c 307; L 1971, c 1149). "Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation" (seeMcKinney's Consolidated Laws of New York, Statutes �74).

In this case, respondent board did not initially suspend B.K. Under the express terms of �3214(3)(c)(2), I am therefore constrained to find that respondent board lacked authority to conduct the hearing and determine the charges against B.K. Therefore, respondent's determination must be annulled and expunged from B.K.'s record.

Furthermore, to the extent that respondent's policy 5313.3-R2 authorizes respondent to conduct hearings for suspensions in excess of five days where respondent has not imposed the underlying suspension, that policy is inconsistent with Education Law and must be revised.

Although the issue of the adequacy of B.K.'s alternative education is moot because the suspension period has ended, I note that policy 5313.3-R2(2) also states that "[w]here the hearing, or the Board decision, is not completed within the period of the five school day suspension, the school principal shall provide for suitable alternative instruction commencing with the sixth school day of suspension" (emphasis added). Education Law �3214(3)(e) provides that where a student has been suspended, "immediate steps" shall be taken for his or her attendance upon instruction. The term "immediate" does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Deborah F., 42 id. 178, Decision No. 14,813; Appeal of Benkelman, 34 id. 250, Decision No. 13,299). In a prior decision, the Commissioner found that a delay of four days was unreasonable (seeAppeal of Bridges, 34 Ed Dept Rep 232, Decision No. 13,291). Accordingly, I direct respondent to review and revise its alternative instruction policy to comply with law.

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent expunge from the school records of petitioners' son any reference to his long-term suspension.

 

IT IS FURTHER ORDERED that respondent revise its disciplinary policies to conform to Education Law �3214(3)(c) and (e) in accordance with this decision.

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